FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
July 17, 1996 (July 16, 1996)
Date of Report (Date of earliest event reported)
SHOE CARNIVAL, INC.
(Exact name of registrant as specified in its charter)
Indiana 0-21360 35-1736614
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
8233 BAUMGART ROAD EVANSVILLE, INDIANA 47711
(Address of principal executive offices)
Registrant's telephone number, including area code: (812) 867-6471
Not Applicable
(Former name or former address, if changed since last report.)
Page 1 of 46 Pages
Exhibit Index at Page 4
<PAGE> 1
Item 5. Other Events.
Effective July 16, 1996, Shoe Carnival, Inc., a Delaware
corporation ("SCI Delaware"), merged with and into its wholly-owned
subsidiary, SCI Indiana, Inc., an Indiana corporation ("SCI Indiana"). The
purpose of the merger was to change the state of incorporation of SCI
Delaware from Delaware to Indiana. The merger was effected pursuant to
that certain Plan and Agreement of Merger, dated April 25, 1996 (the
"Merger Agreement"), which was approved and adopted by the stockholders of
SCI Delaware at the Annual Meeting of Shareholders held on June 14, 1996.
Articles of Merger were filed with the Secretary of State of Indiana on
July 16, 1996, and a Certificate of Merger was filed with the Secretary of
State of Delaware on that same date.
Pursuant to the Merger Agreement, SCI Indiana restated its Articles
of Incorporation and changed its name to "Shoe Carnival, Inc." On the
effective date of the merger, the issued and outstanding shares of Common
Stock, $0.10 par value per share, of SCI Delaware automatically converted
into shares of the Common Stock, without par value, of SCI Indiana on a
one-for-one basis, and SCI Indiana succeeded to all of the assets,
liabilities and business of SCI Delaware. The shareholders of SCI Delaware
were not required to surrender their certificates of Common Stock of SCI
Delaware, and replacement certificates representing shares of SCI Indiana
Common Stock will be issued in exchange therefor upon presentment.
Additionally at the effective time of the merger, SCI Indiana assumed SCI
Delaware's Employee Stock Purchase Plan, its 1993 Stock Option and
Incentive Plan, as amended, and options and all obligations of SCI Delaware
under such plans.
The merger did not result in any change in the business,
management, location of the principal executive offices, assets,
liabilities or stockholders' equity of SCI Delaware.
Pursuant to Rule 12g-3, SCI Indiana is the successor issuer to SCI
Delaware and the shares of Common Stock, without par value, of SCI Indiana
issued in the merger are deemed registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
Because SCI Indiana was a wholly-owned subsidiary of SCI
Delaware, the Registrant is not required to provide financial
statements of SCI Indiana with respect to the merger.
<PAGE> 2
(b) Pro forma financial information.
Because SCI Indiana was a wholly-owned subsidiary of SCI
Delaware, the Registrant is not required to provide pro forma
financial information with respect to the merger.
(c) Exhibits.
2.1 Plan and Agreement of Merger between Shoe Carnival, Inc.
and SCI Indiana, Inc., dated April 25, 1996.
2.2 Articles of Merger, dated as of July 15, 1996, of Shoe Carnival,
Inc. into SCI Indiana, Inc., and filed with the Secretary of
State of Indiana on July 16, 1996.
2.3 Certificate of Merger, dated as of July 15, 1996, of Shoe
Carnival, Inc. into SCI Indiana, Inc., and filed with the
Secretary of State of Delaware on July 16, 1996.
3.1 Restated Articles of Incorporation of Shoe Carnival, Inc.
(incorporated as SCI Indiana, Inc.).
3.2 By-Laws of Shoe Carnival, Inc., as amended.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
SHOE CARNIVAL, INC.
Dated: July 17, 1996 By: /s/ Mark L. Lemond
-------------------------------
Mark L. Lemond, Executive
Vice President - Chief Operating
Officer and Chief Financial
Officer
<PAGE> 3
INDEX TO EXHIBITS
Page No.
Exhibit in this
No. Description Filing
- ------- --------------------------------------------- --------
2.1 Plan and Agreement of Merger between Shoe 5
Carnival, Inc. and SCI Indiana, Inc., dated
April 25, 1996
2.2 Articles of Merger, dated as of July 15, 1996, 11
of Shoe Carnival, Inc. into SCI Indiana, Inc.,
and filed with the Secretary of State of
Indiana on July 16, 1996
2.3 Certificate of Merger, dated as of July 15, 13
1996, of Shoe Carnival, Inc. into SCI Indiana,
Inc., and filed with the Secretary of State
of Delaware on July 16, 1996
3.1 Restated Articles of Incorporation of Shoe 15
Carnival, Inc. (incorporated as SCI
Indiana, Inc.)
3.2 By-Laws of Shoe Carnival, Inc, as amended 28
<PAGE> 4
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER ("Merger Agreement") dated as of
April 25, 1996, is made by and between SHOE CARNIVAL, INC., a Delaware
corporation ("SCI Delaware"), and SCI INDIANA, INC., an Indiana corporation
("SCI Indiana"). SCI Delaware and SCI Indiana are hereinafter sometimes
collectively referred to as the "Constituent Corporations."
WHEREAS, the outstanding authorized capital stock of SCI Indiana
consists of 100 shares of common stock, without par value, all of which are
owned by SCI Delaware.
WHEREAS, SCI Delaware, as the sole shareholder of SCI Indiana, desires
to effect a merger of SCI Delaware with and into SCI Indiana pursuant to
the provisions of the General Corporation Law of the State of Delaware (the
"DGCL") and the Indiana Business Corporation Law (the "IBCL").
WHEREAS, the respective Boards of Directors of SCI Delaware and SCI
Indiana have determined that it is advisable and in the best interests of
each of such corporations that SCI Delaware be merged with and into SCI
Indiana upon the terms and subject to the conditions herein provided.
WHEREAS, the Board of Directors of SCI Indiana and SCI Delaware as the
sole shareholder of SCI Indiana have, by resolutions duly adopted, approved
this Merger Agreement and directed that it be executed by the undersigned
officers.
WHEREAS, the Board of Directors of SCI Delaware has, by resolution
duly adopted, approved this Merger Agreement and directed that it be
executed by the undersigned officers and that it be submitted to a vote of
the stockholders of SCI Delaware.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties agree that SCI Delaware shall be
merged with and into SCI Indiana and that the terms and conditions of the
merger, the mode of carrying the merger into effect, the manner of
converting the shares of the Constituent Corporations and certain other
provisions relating thereto shall be as follows:
ARTICLE I
THE MERGER
1.01. Surviving Corporation. Subject to the terms and provisions of
this Merger Agreement, and in accordance with the DGCL and the IBCL, at the
Effective Time (as defined in Section 1.07 hereof) SCI Delaware shall be
merged with and into SCI Indiana (the "Merger"). SCI Indiana shall be the
<PAGE> 5
surviving corporation (hereinafter sometimes called the "Surviving
Corporation") of the Merger, its name shall be changed to "Shoe Carnival,
Inc." and it shall continue its corporate existence under the laws of the
State of Indiana. At the Effective Time, the separate corporate existence
of SCI Delaware shall cease.
1.02. Effect of the Merger. At the Effective Time, the Merger shall
have the effects provided for herein and in Section 259 of the DGCL and
Section 23-1-40-6 of the IBCL.
1.03. Articles of Incorporation. As of the Effective Time, the
Articles of Incorporation of SCI Indiana, as in effect immediately prior to
the Effective Time, shall be amended and replaced in their entirety by the
Restated Articles of Incorporation attached hereto as Annex 1 which
Restated Articles of Incorporation will become, at the Effective Time, the
Articles of Incorporation of the Surviving Corporation until thereafter
duly altered, amended or repealed in accordance with the provisions thereof
and applicable law.
1.04. By-Laws. As of the Effective Time, the By-Laws of SCI Indiana,
as in effect immediately prior to the Effective Time, shall be amended and
replaced in their entirety by the Amended and Restated By-Laws attached
hereto as Annex 2 which Amended and Restated By-Laws will become, at the
Effective Time, the By-Laws of the Surviving Corporation until thereafter
duly altered, amended or repealed in accordance with the provisions
thereof, the Articles of Incorporation of the Surviving Corporation and
applicable law.
1.05. Directors of the Surviving Corporation. At the Effective Time,
each person who is a director of SCI Delaware immediately prior to the
Effective Time shall become a director of the Surviving Corporation and
each such person shall serve as a director of the Surviving Corporation for
the balance of the term for which such person was elected a director of SCI
Delaware and until his successor is duly elected and qualified in the
manner provided in the By-Laws or the Articles of Incorporation of the
Surviving Corporation or as otherwise provided by law or until his or her
earlier death, resignation or removal in the manner provided in the By-Laws
or the Articles of Incorporation of the Surviving Corporation or as
otherwise provided by law.
1.06. Officers of the Surviving Corporation. At the Effective Time,
each person who is an officer of SCI Delaware immediately prior to the
Effective Time shall become an officer of the Surviving Corporation with
each such person to hold the same office in the Surviving Corporation, in
accordance with the By-Laws thereof, as he held in SCI Delaware immediately
prior to the Effective Time.
<PAGE> 6
1.07. Effective Time. The Merger shall become effective in
accordance with the provisions of Section 23-1-40-5 of the IBCL and Section
252 of the DGCL, upon the later to occur of (a) completion of the filing of
articles of merger with the Secretary of State of Indiana, and (b) the
filing of a certificate of merger with the Secretary of State of the State
of Delaware. The date and time when the Merger shall become effective is
herein referred to as the "Effective Time."
1.08. Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or
desirable (a) to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation, title to and possession of any property or right of
SCI Delaware acquired or to be acquired by reason or as a result of the
Merger, or (b) otherwise to carry out the purpose of this Merger Agreement,
SCI Delaware and its proper officers and directors shall be deemed to have
granted hereby to the Surviving Corporation an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments and
assurances in law and to do all acts necessary or proper to vest, perfect
or confirm title to and the possession of such property or rights in the
Surviving Corporation and otherwise to carry out the purposes of this
Merger Agreement, and the proper officers and directors of the Surviving
Corporation are hereby fully authorized in the name of SCI Delaware or
otherwise to take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
2.01. Conversion of Shares. At the Effective Time:
(a) Each share of Common Stock of SCI Delaware, $0.10 par value per
share ("Delaware Stock"), issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be
converted into one fully paid and nonassessable share of Common
Stock of SCI Indiana, without par value ("Indiana Stock").
(b) Each share of Delaware Stock held in the treasury of SCI
Delaware immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of SCI
Delaware, be converted into one fully paid and nonassessable
share of Indiana Stock and shall be held in the treasury of the
Surviving Corporation;
<PAGE> 7
(c) Each share of Indiana Stock, issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be
cancelled and retired and shall cease to exist.
2.02. Effect of Conversion. At and after the Effective Time, each
share certificate which immediately prior to the Effective Time represented
outstanding shares of Delaware Stock ("Delaware Certificate") shall be
deemed for all purposes to evidence ownership of, and to represent, the
number of shares of Indiana Stock into which the shares of Delaware Stock
represented by such certificate immediately prior to the Effective Time
have been converted pursuant to Section 2.01 hereof. The registered owner
of any Delaware Certificate outstanding immediately prior to the Effective
Time, as such owner appears in the books and records of SCI Delaware or its
transfer agent immediately prior to the Effective Time, shall, until such
certificate is surrendered for transfer or exchange, have and be entitled
to exercise any voting and other rights with respect to and to receive any
dividends or other distributions on the shares of Indiana Stock into which
the shares represented by any such certificate have been converted pursuant
to Section 2.01 hereof.
2.03. Exchange of Certificate. Each holder of a Delaware Certificate
shall, upon the surrender of such certificate to the Surviving Corporation
or its transfer agent for cancellation after the Effective Time, be
entitled to receive from the Surviving Corporation or its transfer agent a
certificate representing the number of shares of Indiana Stock into which
the shares of Delaware Stock represented by such certificate have been
converted pursuant to Section 2.01 hereof.
2.04. Stock Options and Stock Option and Incentive Plans. Each right
or option to purchase shares of Delaware Stock granted under SCI Delaware's
1993 Stock Option and Incentive Plan, as amended, or otherwise as to which
SCI Delaware or any of its affiliates has assumed or incurred obligations
(hereinafter collectively referred to as the "Options") which is
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder of any such right
or option be converted into and become a right or option to purchase the
same number of shares of Indiana Stock, as the number of shares of Delaware
Stock purchasable under such right or option immediately prior to the
Effective Time at the same option price per share and upon the same terms
and subject to the same conditions as are in effect at the Effective Time.
The Surviving Corporation shall reserve for purposes of the Options a
number of shares of Indiana Stock, equal to the number of shares of
Delaware Stock reserved by SCI Delaware for issuance under the Options as
<PAGE> 8
of the Effective Time. As of the Effective Time, SCI Indiana hereby
assumes SCI Delaware's Employee Stock Purchase Plan and the 1993 Stock
Option and Incentive Plan and Options and all obligations of SCI Delaware
under the Options and under such plans.
ARTICLE III
APPROVAL; AMENDMENT; ABANDONMENT; MISCELLANEOUS
3.01. Approval. This Merger Agreement shall be submitted for
approval by the stockholders of SCI Delaware at its annual or at a special
meeting of stockholders.
3.02. Amendment. Subject to applicable law, this Merger Agreement
may be amended, modified or supplemented by written agreement of the
Constituent Corporations at any time prior to the Effective Time, except
that after the approval contemplated by Section 3.01 hereof, there shall be
no amendments that would (a) alter or change the amount or kind of shares
to be received by stockholders in the Merger, (b) alter or change any term
of the Articles of Incorporation or By-Laws of SCI Indiana, as amended
pursuant to Section 1.03 or Section 1.04 hereof, or (c) alter or change any
of the terms and conditions of this Merger Agreement if such alteration or
change would adversely affect the holders of any class of stock of either
of the Constituent Corporations.
3.03. Abandonment. At any time prior to the Effective Time, this
Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of SCI Indiana or SCI Delaware, or both, notwithstanding
approval of this Merger Agreement by the sole shareholder of SCI Indiana or
the stockholders of SCI Delaware.
3.04. Counterparts. This Merger Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and the
same agreement.
3.05. Statutory Agent in Indiana. The name and address of the
statutory agent in Indiana upon whom any process, notice or demand against
SCI Delaware or the Surviving Corporation may be served are:
Shoe Carnival, Inc.
8233 Baumgart Road
Evansville, Indiana 47711
Attention: Corporate Secretary
3.06. Designated Agent in Delaware. The Surviving Corporation agrees
that it may be served with process in the State of Delaware in any
<PAGE> 9
proceeding for enforcement of any obligation of SCI Delaware, as well as
for enforcement of any obligation of the Surviving Corporation arising from
the Merger, and the Surviving Corporation irrevocably appoints the Delaware
Secretary of State as its agent to accept service of process in any such
suit or other proceedings. A copy of such process shall be mailed by the
Delaware Secretary of State to:
Shoe Carnival, Inc.
8233 Baumgart Road
Evansville, Indiana 47711
Attention: Corporate Secretary
IN WITNESS WHEREOF, SCI Delaware and SCI Indiana have caused this
Merger Agreement to be signed by their respective duly authorized officers
as of the date first above written.
SCI INDIANA, INC.
(an Indiana corporation)
ATTEST: By: /s/ David H. Russell
-------------------------------
David H. Russell, President and
By: /s/ David A. Kapp Chief Executive Officer
------------------------
David A. Kapp, Secretary
SHOE CARNIVAL, INC.
(a Delaware corporation)
ATTEST:
By: /s/ David H. Russell
-------------------------------
By: /s/ David A. Kapp David H. Russell, President and
------------------------ Chief Executive Officer
David A. Kapp, Secretary
<PAGE> 10
ARTICLES OF MERGER
OF
SHOE CARNIVAL, INC.
INTO
SCI INDIANA, INC.
In accordance with the requirements of the Indiana Business
Corporation Law, the undersigned corporation surviving a merger pursuant to
Indiana Code 23-1-40-1 and 23-1-40-7 (the "Merger"), sets forth the
following facts:
ARTICLE I
Surviving Corporation
The name of the corporation surviving the Merger is SCI Indiana, Inc.
(the "Surviving Corporation"). The name of the Surviving Corporation will
be changed to "Shoe Carnival, Inc." as a result of the Merger. The
Surviving Corporation is an Indiana corporation incorporated on April 3,
1996.
ARTICLE II
Merging Corporation
The name of the corporation merging with and into the Surviving
Corporation (the "Merging Corporation") is Shoe Carnival, Inc. The Merging
Corporation is a Delaware corporation formed on February 25, 1988 (as DAR
Group Investments, Inc.).
ARTICLE III
Plan of Merger
The Plan of Agreement and Merger (the "Plan of Merger") for the Merger
of the Merging Corporation with and into the Surviving Corporation
containing the information required by Indiana Code 23-1-40-1(b) and 23-
1-40-7, is attached hereto as Exhibit A and made a part hereof. Included
as Annex 1 to the Plan of Merger is a copy of the Restated Articles of
Incorporation of the Surviving Corporation following the effectiveness of
the Merger.
<PAGE> 11
ARTICLE IV
Effective Time
The Merger shall become effective on upon the later to occur of (a)
completion of the filing of these Articles of Merger, and (b) the filing of
a certificate of merger with the Secretary of State of Delaware.
ARTICLE V
Manner of Adoption and Vote
Section 1. Action by Surviving Corporation. By unanimous written
consent dated as of April 25, 1996, the Board of Directors of the Surviving
Corporation adopted the Plan of Merger. By unanimous written consent dated
as of April 25, 1996, the sole shareholder of the Surviving Corporation
approved the Plan of Merger.
Section 2. Action by Merging Corporation. By unanimous written
consent, dated as of April 25, 1996, the Board of Directors of the Merging
Corporation adopted the Plan of Merger and recommended its approval by its
stockholders. As of the record date for the meeting of the stockholders of
the Merging Corporation held on June 14, 1996, there were 13,018,588 shares
of voting stock of the Merging Corporation outstanding and entitled to vote
on the Plan of Merger. At such meeting, the holders of 9,663,885 shares
voted to approve the Plan of Merger, the holders of 493,127 shares voted
against the Plan of Merger and the holders of 12,315 shares abstained from
voting on the Plan of Merger. The number of votes cast to approve the
Plan of Merger was sufficient to approve the Plan of Merger under Delaware
law.
IN WITNESS WHEREOF, the Surviving Corporation has caused these
Articles of Merger to be signed by its duly authorized officer on this 15th
day of July, 1996.
SCI INDIANA, INC.
By /s/ Mark L. Lemond
---------------------------------
Mark L. Lemond, Executive
Vice President - Chief Operating
Officer and Chief Financial Officer
<PAGE> 12
CERTIFICATE OF MERGER
OF
SHOE CARNIVAL, INC.
INTO
SCI INDIANA, INC.
(UNDER SECTION 252 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE)
(1) The name and state of incorporation of each of the constituent
corporations are:
(a) Shoe Carnival, Inc., a Delaware corporation; and
(b) SCI Indiana, Inc., an Indiana corporation.
(2) A Plan and Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by SCI Indiana, Inc. and by Shoe
Carnival, Inc. in accordance with the provisions of subsection (c) of
Section 252 of the General Corporation Law of the State of Delaware.
(3) The name of SCI Indiana, Inc., the surviving corporation, will be
changed to Shoe Carnival, Inc. as a result of the merger.
(4) The restated articles of incorporation of the surviving
corporation in the form attached to the Plan and Agreement of Merger shall
be the articles of incorporation of the surviving corporation.
(5) The surviving corporation is a corporation of the State of
Indiana.
(6) The executed Plan and Agreement of Merger is on file at the
principal place of business of SCI Indiana, Inc. at 8233 Baumgart Road,
Evansville, Indiana.
(7) A copy of the Plan and Agreement of Merger will be furnished by
SCI Indiana, Inc. on request and without cost, to any stockholder of Shoe
Carnival, Inc. or SCI Indiana, Inc.
(8) SCI Indiana, Inc. hereby agrees that it may be served with process
in Delaware in any proceeding for enforcement of any obligation of Shoe
Carnival, Inc., as well as for enforcement of any obligation of SCI
Indiana, Inc. arising from the merger, including any suit or other
proceeding to enforce the right of any stockholders as determined in
appraisal proceedings pursuant to 8 Del. C. Sec. 262, and SCI Indiana, Inc.
<PAGE> 13
hereby irrevocably appoints the Secretary of State of the State of Delaware
as its agent to accept service or process in any such suit or other
proceedings and a copy of such process shall be mailed by the Secretary to
SCI Indiana, Inc. at the following address:
8233 Baumgart Road
Evansville, IN 47711
ATTN: Corporate Secretary
IN WITNESS WHEREOF, SCI Indiana, Inc. has caused this certificate to
be signed by Mark L. Lemond, its Executive Vice President- Chief Operating
Officer and Chief Financial Officer, and attested by its Secretary, on the
15th day of July, 1996.
SCI INDIANA, INC.
By: /s/ Mark L. Lemond
---------------------------
Mark L. Lemond, Executive
Vice President- Chief
Operating Officer and Chief
Financial Officer
ATTEST:
By: /s/ David A. Kapp
------------------------
David A. Kapp, Secretary
<PAGE> 14
RESTATED ARTICLES OF INCORPORATION
OF
SHOE CARNIVAL, INC.
(FORMERLY KNOWN AS SCI INDIANA, INC.)
SCI Indiana, Inc., an Indiana corporation (the "Corporation"),
and the survivor of a merger with Shoe Carnival, Inc., a Delaware
corporation, effected pursuant to a Plan and Agreement of Merger dated
April 25, 1996, desiring to amend and restate its Articles of
Incorporation, pursuant to the Indiana Business Corporation Law (the
"IBCL") and to change its name, submits the following Restated Articles of
Incorporation:
ARTICLE I
The name of the Corporation is Shoe Carnival, Inc.
ARTICLE II
The address of its registered office is 8233 Baumgart Road,
Evansville, Indiana 47711, and the name of its registered agent at such
address is Mark L. Lemond.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted are:
(a) To engage in any lawful act or activity for which
corporations may be organized under the IBCL; and
(b) In general, to possess and exercise all the powers and
privileges granted by the IBCL or by any other law of Indiana or by these
Restated Articles of Incorporation, together with any powers incidental
thereto, so far as such powers and privileges are necessary or convenient
to the conduct, promotion or attainment of the business or purposes of the
Corporation.
ARTICLE IV
Section 1. Capital Stock. The total number of shares of all
classes of capital stock which the Corporation shall have authority to
issue is 55,000,000 shares, consisting of 50,000,000 shares of Common
Stock, without par value ("Common Stock"), and 5,000,000 shares of
Preferred Stock, without par value ("Preferred Stock").
Section 2. Common Stock.
(a) Subject to any voting rights that may be conferred upon the
holders of any series of the Preferred Stock established by the Board of
<PAGE> 15
Directors pursuant to authority herein provided, and except as otherwise
provided by law, the shares of Common Stock shall entitle the holders
thereof to one vote for each share upon all matters upon which shareholders
have the right to vote.
(b) Subject to any limitations prescribed in this Article IV
and any further limitations prescribed in accordance therewith, and subject
to any prior rights that may be conferred upon the holders of any series of
the Preferred Stock established by the Board of Directors pursuant to
authority herein provided, and except as otherwise provided by law, the
holders of shares of Common Stock shall be entitled to receive when and as
declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, pro rata dividends payable either in
cash, in property or securities of the Corporation.
(c) Subject to any prior rights that may be conferred upon the
holders of any series of the Preferred Stock established by the Board of
Directors pursuant to authority herein provided, holders of shares of
Common Stock will be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its shareholders in
the event of any liquidation, dissolution or winding up of the Corporation.
Section 3. Preferred Stock.
(a) Except as required by the IBCL or by the provisions of
these Restated Articles of Incorporation adopted by the Board of Directors
pursuant to subsection (b) of this Section 3 describing the terms of the
Preferred Stock or a series thereof, the holders of Preferred Stock shall
have no voting rights or powers. Shares of Preferred Stock shall, when
validly issued by the Corporation, entitle the record holder thereof to
vote as and on such matters, but only as and on such matters, as the
holders thereof are entitled to vote under the IBCL or under the provisions
of these Restated Articles of Incorporation adopted by the Board of
Directors pursuant to subsection (b) of this Section 3 describing the terms
of the Preferred Stock or a series thereof (which provisions may provide
for special, conditional, limited, or unlimited voting rights, including
multiple or fractional votes per share, or for no right to vote, except to
the extent required by the IBCL) and subject to such shareholder disclosure
and recognition procedures (which may include voting prohibition sanctions)
as the Corporation may by action of the Board of Directors establish.
(b) Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation and such
preferences, limitations, and relative voting and other rights as shall be
set forth in these Restated Articles of Incorporation. Subject to the
requirements of the IBCL and subject to all other provisions of these
Restated Articles of Incorporation, the Board of Directors of the
Corporation may create one or more series of Preferred Stock and may
<PAGE> 16
determine the preferences, limitations, and relative voting and other
rights of one or more series of Preferred Stock before the issuance of any
shares of that series by the adoption of an amendment to these Restated
Articles of Incorporation that specifies the terms of the series of
Preferred Stock. All shares of a series of Preferred Stock must have
preferences, limitations, and relative voting and other rights identical
with those of other shares of the same series and, if the description of
the series set forth in these Restated Articles of Incorporation so
provides, no series of Preferred Stock need have preferences, limitations,
or relative voting or other rights identical with those of any other series
of Preferred Stock.
Before issuing any shares of a series of Preferred Stock, the
Board of Directors shall adopt an amendment to these Restated Articles of
Incorporation, which shall be effective without any shareholder approval or
other action, that sets forth the preferences, limitations, and relative
voting and other rights of the series, and authority is hereby expressly
vested in the Board of Directors, by such amendment:
(1) To fix the distinctive designation of such series and the
number of shares which shall constitute such series, which number may
be increased or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of
Directors;
(2) To fix the voting rights of such series, which may consist
of special, conditional, limited, or unlimited voting rights,
including multiple or fractional votes per share, or no right to vote
(except to the extent required by the IBCL);
(3) To fix the dividend or distribution rights of such series
and the manner of calculating the amount and time for payment of
dividends or distributions, including, but not limited to:
(A) the dividend rate, if any, of such series;
(B) any limitations, restrictions, or conditions on the
payment of dividends or other distributions, including whether
dividends or other distributions shall be noncumulative or
cumulative or partially cumulative and, if so, from which date or
dates;
(C) the relative rights of priority, if any, of payment of
dividends or other distributions on shares of that series in
relation to Common Stock and shares of any other series of
Preferred Stock; and
(D) the form of dividends or other distributions, which may
be payable at the option of the Corporation, the shareholder, or
another person (and in such case to prescribe the terms and
conditions of exercising such option), or upon the occurrence of
<PAGE> 17
a designated event in cash, indebtedness, stock or other
securities or other property, or in any combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for
adjustment of the dividend or distribution rate in such events as
the Board of Directors shall determine;
(4) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be redeemed or
converted, which may be
(A) at the option of the Corporation, the shareholder, or
another person or upon the occurrence of a designated event;
(B) for cash, indebtedness, securities, or other property
or any combination thereof; and
(C) in a designated amount or in an amount determined in
accordance with a designated formula or by reference to extrinsic
data or events;
(5) To fix the amount or amounts payable upon the shares of
such series in the event of any liquidation, dissolution, or winding
up of the Corporation and the relative rights of priority, if any, of
payment upon shares of such series in relation to Common Stock and
shares of any other series of special shares; and to determine whether
or not any such preferential rights upon dissolution need be
considered in determining whether or not the Corporation may make
dividends, repurchases, or other distributions;
(6) To determine whether or not the shares of such series shall
be entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of such series and, if so entitled, the amount
of such fund and the manner of its application;
(7) To determine whether or not the issue of any additional
shares of such series or of any other series in addition to such
series shall be subject to restrictions in addition to restrictions,
if any, on the issue of additional shares imposed in the provisions of
these Restated Articles of Incorporation fixing the terms of any
outstanding series of Preferred Stock theretofore issued pursuant to
this Section 3 and, if subject to additional restrictions, the extent
of such additional restrictions; and
(8) Generally to fix the other preferences or rights, and any
qualifications, limitations, or restrictions of such preferences or
rights, of such series to the full extent permitted by the IBCL;
provided, however, that no such preferences, rights, qualifications,
<PAGE> 18
limitations, or restrictions shall be in conflict with these Restated
Articles of Incorporation or any amendment hereof.
(c) Preferred Stock of any series that has been redeemed (whether
through the operation of a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible, has been converted into shares of
the Corporation of any other class or series, may be reissued as a part of
such series or of any other series of Preferred Stock, subject to such
limitations (if any) as may be fixed by the Board of Directors with respect
to such series of Preferred Stock in accordance with subsection (b) of this
Section 3.
ARTICLE V
Section 1. Classification of Board of Directors. The Board of
Directors shall be divided into three classes, as nearly equal in number as
the then total number of directors constituting the entire Board permits
with the term of office of one class expiring each year. The term of the
first class of directors shall expire at the annual meeting of shareholders
in 1997, and the term of the second and third classes of directors shall
expire at the annual meetings of shareholders in 1998 and 1999,
respectively. Upon expiration of the terms set forth herein, each class of
directors shall be elected for a three year term expiring at the third
succeeding annual meeting of shareholders. As of the date of adoption of
these Restated Articles of Incorporation, the directors of the Corporation
and their classes are as follows: David H. Russell - first class; William
E. Bindley and Mark L. Lemond - second class; and J. Wayne Weaver and
Gerald W. Schoor - third class. Any vacancies in the Board of Directors
for any reason, and any directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum, and
any directors so chosen shall hold office until the next election of the
class for which such directors shall have been chosen and until their
successors shall be elected and qualified. Notwithstanding the foregoing,
and except as otherwise required by law, whenever the holders of any one or
more series of Preferred Stock shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of shareholders. Subject to the foregoing, at
each annual meeting of shareholders the successors to the class of
directors whose term shall then expire shall be elected to hold office for
a term expiring at the third succeeding annual meeting.
Section 2. Removal of Directors. Notwithstanding any other
provisions of the IBCL, these Restated Articles of Incorporation or the By-
Laws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Restated Articles of
Incorporation or the By-Laws of the Corporation), one or more directors of
<PAGE> 19
the Corporation may be removed at any time, with or without cause, by the
affirmative vote of the holders of a majority or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the shareholders called for that purpose, or by a majority
vote of the entire Board of Directors. Notwithstanding the foregoing, and
except as otherwise required by law, whenever the holders of any one or
more series of Preferred Stock shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the provisions of
this Section shall not apply with respect to the director or directors
elected by such holders of Preferred Stock.
ARTICLE VI
The Corporation shall, to the fullest extent permitted by Indiana
law, as amended from time to time, indemnify, and advance expenses to, each
of its now acting and former directors, officers, employees and agents,
whenever any such currently acting or former director, officer, employee or
agent is made a party or threatened to be made a party in any action, suit
or proceeding by reason of his service as such with the Corporation.
ARTICLE VII
Section 1. Supermajority Vote for Business Combinations. Except
as provided in Sections 2 and 3 hereof, neither the Corporation nor its
Subsidiaries, if any, shall become a party to any Business Combination with
a Related Person without the prior affirmative vote at a meeting of the
Corporation's shareholders:
(a) Of at least 80% of the outstanding shares of all classes of
Voting Stock of the Corporation considered for purposes of this
Article VII as a single class, and
(b) Of an Independent Majority of Shareholders.
Such favorable votes shall be in addition to any shareholder vote
which would be required without reference to this Section 1 and shall be
required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified by law or elsewhere in these
Restated Articles of Incorporation or the By-Laws of the Corporation or
otherwise.
Section 2. Fair Price Exception. The provisions of Section 1 of
this Article VII shall not apply to a Business Combination if all of the
conditions set forth in subsections (a) through (d) are satisfied.
(a) The fair market value of the property, securities, or other
consideration to be received per share by holders of each class or series
of capital stock of the Corporation in the Business Combination is not
<PAGE> 20
less, as of the date of the consummation of the Business Combination (the
"Consummation Date"), than the higher of the following: (1) the highest
per share price (with appropriate adjustments for recapitalizations and for
stock splits, stock dividends, and like distributions), including brokerage
commissions and solicitation fees paid by the Related Person in acquiring
any of its holdings of such class or series of capital stock within the
two-year period immediately prior to the first public announcement of the
proposed Business Combination ("Announcement Date") plus interest
compounded annually from the date that the Related Person became a Related
Person (the "Determination Date"), or if later from a date two years before
the Consummation Date, through the Consummation Date, at the rate publicly
announced as the "prime rate" of interest of Citibank, N.A. (or of such
other major bank headquartered in New York as may be selected by a majority
of the Continuing Directors) from time to time in effect, less the
aggregate amount of any cash dividends paid and the fair market value of
any dividends paid in other than cash on each share of such stock from the
date from which interest accrues under the preceding clause through the
Consummation Date up to but not exceeding the amount of interest so payable
per share; OR (2) the fair market value per share of such class or series
on the Announcement Date as determined by the highest closing sale price
during the 30-day period immediately preceding the Announcement Date if
such stock is listed on a securities exchange registered under the
Securities Exchange Act of 1934 or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to such stock
during the 30-day period preceding the Announcement Date on the National
Association of Securities Dealers, Inc. Automated Quotation System or any
similar system then in use, or if no such quotations are available, the
fair market value of such stock immediately prior to the first public
announcement of the proposed Business Combination as determined by the
Continuing Directors in good faith. In the event of a Business Combination
upon the consummation of which the Corporation would be the surviving
corporation or company or would continue to exist (unless it is provided,
contemplated, or intended that as part of such Business Combination or
within one year after consummation thereof a plan of liquidation or
dissolution of the Corporation will be effected), the term "other
consideration to be received" shall include (without limitation) Common
Stock and/or the shares of any other class of stock retained by
shareholders of the Corporation other than Related Persons who are parties
to such Business Combination;
(b) The consideration to be received in such Business
Combination by holders of each class or series of capital stock of the
Corporation other than the Related Person involved shall, except to the
extent that a shareholder agrees otherwise as to all or part of the shares
which he or she owns, be in the same form and of the same kind as the
consideration paid by the Related Person in acquiring the majority of the
shares of capital stock of such class or series already Beneficially Owned
by it;
<PAGE> 21
(c) After such Related Person became a Related Person and prior
to the consummation of such Business Combination: (1) such Related Person
shall have taken steps to ensure that the Board of Directors of the
Corporation included at all times representation by Continuing Directors
proportionate to the ratio that the number of shares of Voting Stock of the
Corporation from time to time owned by shareholders who are not Related
Persons bears to all shares of Voting Stock of the Corporation outstanding
at the time in question (with a Continuing Director to occupy any resulting
fractional position among the Directors); (2) such Related Person shall not
have acquired from the Corporation, directly or indirectly, any shares of
capital stock of the Corporation (except upon conversion of convertible
securities acquired by it prior to becoming a Related Person or as a result
of a pro rata stock dividend, stock split, or division of shares or in a
transaction which satisfied all applicable requirements of this Article
VII); (3) such Related Person shall not have acquired any additional shares
of Voting Stock of the Corporation or securities convertible into or
exchangeable for shares of Voting Stock except as a part of the transaction
which resulted in such Related Person's becoming a Related Person; and (4)
such Related Person shall not have received the benefit, directly or
indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges, or other financial assistance or tax credits
provided by the Corporation or any Subsidiary, or made any major change in
the Corporation's business or equity capital structure or entered into any
contract, arrangement, or understanding with the Corporation except any
such change, contract, arrangement, or understanding as may have been
approved by the favorable vote of not less than a majority of the
Continuing Directors of the Corporation; and
(d) A proxy or information statement complying with the
requirements of the Securities Exchange Act of 1934 and the rules and
regulations of the Securities and Exchange Commission thereunder, as then
in force for corporations subject to the requirements of Section 14 of such
Act (even if the Corporation is not otherwise subject to Section 14 of such
Act), shall have been mailed to all holders of shares of the Corporation's
capital stock entitled to vote with respect to such Business Combination.
Such proxy or information statement shall contain on the face page thereof,
in a prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may have furnished in writing and, if deemed advisable by a
majority of the Continuing Directors, a fair summary of an opinion of a
reputable investment banking firm addressed to the Corporation as to the
fairness (or lack of fairness) of the terms of such Business Combination
from the point of view of the holders of shares of Voting Stock other than
any Related Person (such investment banking firm to be selected by a
majority of the Continuing Directors, to be furnished with all information
it reasonably requests, and to be paid a reasonable fee for its services
upon receipt by the Corporation of such opinion).
<PAGE> 22
Section 3. Director Approval Exception. The provisions of
Section 1 of this Article VII shall not apply to a Business Combination if:
(a) The Continuing Directors of the Corporation, by an
affirmative vote of not less than a majority of all Continuing Directors,
(1) have expressly approved a memorandum of understanding with the Related
Person with respect to the Business Combination prior to the time that the
Related Person became a Related Person and the Business Combination is
effected on substantially the same terms and conditions as are provided by
the memorandum of understanding, or (2) have otherwise approved the
Business Combination (this provision is incapable of satisfaction unless
there is at least one Continuing Director); or
(b) The Business Combination is solely between the Corporation
and another corporation, one hundred percent (100%) of the Voting Stock of
which is owned directly or indirectly by the Corporation.
Section 4. Definitions. For purposes of this Article VII:
(a) A "Business Combination" means:
(1) The sale, exchange, lease, transfer, or other disposition
to or with a Related Person or any Affiliate or Associate of such
Related Person by the Corporation or any Subsidiaries (in a single
transaction or a Series of Related Transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
businesses (including, without limitation, securities issued by a
Subsidiary, if any);
(2) The purchase, exchange, lease, or other acquisition by the
Corporation or any Subsidiaries (in a single transaction or a Series
of Related Transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(3) Any merger or consolidation of the Corporation or any
Subsidiary thereof into or with a Related Person or any Affiliate or
Associate of such Related Person or into or with another Person which,
after such merger or consolidation, would be an Affiliate or an
Associate of a Related Person, in each case irrespective of which
Person is the surviving entity in such merger or consolidation;
(4) Any reclassification of securities, recapitalization, or
other transaction (other than a redemption in accordance with the
terms of the security redeemed) which has the effect, directly or
<PAGE> 23
indirectly, of increasing the proportionate amount of shares of Voting
Stock of the Corporation or any Subsidiary thereof which are
Beneficially Owned by a Related Person, or any partial or complete
liquidation, spinoff, splitoff, or splitup of the Corporation or any
Subsidiary thereof; provided, however, that this Section 4(a)(4) shall
not relate to any transaction that has been approved by a majority of
the Continuing Directors; or
(5) The acquisition upon the issuance thereof of Beneficial
Ownership by a Related Person of shares of Voting Stock or securities
convertible into shares of Voting Stock or any voting securities or
securities convertible into voting securities of any Subsidiary of the
Corporation, or the acquisition upon the issuance thereof of
Beneficial Ownership by a Related Person of any rights, warrants, or
options to acquire any of the foregoing or any combination of the
foregoing shares of Voting Stock or voting securities of a Subsidiary,
if any.
(b) A "Series of Related Transactions" shall be deemed to
include not only a series of transactions with the same Related Person, but
also a series of separate transactions with a Related Person or any
Affiliate or Associate of such Related Person.
(c) A "Person" shall mean any individual, firm, corporation, or
other entity and any partnership, syndicate, or other group.
(d) "Related Person" shall mean any Person (other than the
Corporation or any Subsidiary of the Corporation or the Continuing
Directors, singly or as a group) who or that at any time described in the
last sentence of the penultimate paragraph of this subsection (d):
(1) is the Beneficial Owner, directly or indirectly, of more
than ten percent (10%) of the voting power of the outstanding shares
of Voting Stock and who has not been the Beneficial Owner, directly or
indirectly, of more than ten percent (10%) of the voting power of the
outstanding shares of Voting Stock for a continuous period of two
years prior to the date in question; or
(2) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question (but not
continuously during such two-year period) was the Beneficial Owner,
directly or indirectly, of ten percent (10%) or more of the voting
power of the then outstanding shares of Voting Stock; or
<PAGE> 24
(3) is an assignee of or has otherwise succeeded to any shares
of the Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Related Person, if such assignment or succession shall have occurred
in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, as
amended.
A Related Person shall be deemed to have acquired a share of
stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. For the purposes of determining whether a Person
is the Beneficial Owner of ten percent (10%) or more of the voting power of
the then outstanding Voting Stock, the outstanding Voting Stock shall be
deemed to include any Voting Stock that may be issuable to such Person
pursuant to a right to acquire such Voting Stock and that is therefore
deemed to be Beneficially Owned by such Person pursuant to Section
4(e)(2)(A). A Person who is a Related Person at (1) the time any
definitive agreement relating to a Business Combination is entered into,
(2) the record date for the determination of shareholders entitled to
notice of and to vote on a Business Combination, or (3) the time
immediately prior to the consummation of a Business Combination shall be
deemed a Related Person.
A Related Person shall not include the Board of Directors of the
Corporation acting as a group. In addition, a Related Person shall not
include any Person who is the Beneficial Owner of more than ten percent
(10%) of the outstanding shares of Voting Stock of the predecessor of the
Corporation, Shoe Carnival, Inc., a Delaware corporation, formerly known as
DAR Group Investments, Inc., on January 15, 1993.
(e) A Person shall be a "Beneficial Owner" of any shares of
Voting Stock:
(1) which such Person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such Person or any of its Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement, or understanding or upon the exercise of
conversion rights, exchange rights, warrants, or options, or
otherwise, or (B) the right to vote pursuant to any agreement,
arrangement, or understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement, or understanding for the
<PAGE> 25
purpose of acquiring, holding, voting, or disposing of any shares of
Voting Stock.
(f) An "Affiliate" of, or a person Affiliated with, a specific
Person means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
(g) The term "Associate" used to indicate a relationship with
any Person, means (1) any corporation or organization (other than this
Corporation or a majority-owned Subsidiary of this Corporation) of which
such Person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of five percent (5%) or more of any class of equity
securities, (2) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, (3) any relative or spouse of
such Person, or any relative of such spouse, who has the same home as such
Person, or (4) any investment company registered under the Investment
Company Act of 1940, as amended, for which such Person or any Affiliate of
such Person serves as investment adviser.
(h) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Related Person set forth in Section 4(d) hereof, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(i) "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is not associated with the
Related Person and was a member of the Board prior to the time that the
Related Person became a Related Person, and any successor of a Continuing
Director who is not associated with the Related Person and is recommended
to succeed a Continuing Director by not less than two-thirds of the
Continuing Directors then on the Board.
(j) "Independent Majority of Shareholders" shall mean the
holders of the outstanding shares of Voting Stock representing a majority
of all the votes entitled to be cast by all shares of Voting Stock other
than shares Beneficially Owned or controlled, directly or indirectly, by a
Related Person.
(k) "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation or another corporation entitled to vote generally
on the election of Directors, and each reference to a proportion of shares
of Voting Stock shall refer to such proportion of the votes entitled to be
cast by such shares.
(l) "Substantial Part" means properties and assets involved in
any single transaction or a Series of Related Transactions having an
<PAGE> 26
aggregate fair market value of more than ten percent (10%) of the total
consolidated assets of the Person in question as determined immediately
prior to such transaction or Series of Related Transactions.
Section 5. Director Determinations. A majority of the
Continuing Directors shall have the power to determine for the purposes of
this Article VII, on the basis of information known to them: (a) the
number of shares of Voting Stock of which any Person is the Beneficial
Owner, (b) whether a Person is an Affiliate or Associate of another, (c)
whether a Person has an agreement, arrangement, or understanding with
another as to the matters referred to in the definition of "Beneficial
Owner," (d) whether the assets subject to any Business Combination
constitute a Substantial Part, (e) whether two or more transactions
constitute a Series of Related Transactions, and (f) such other matters
with respect to which a determination is required under this Article VII.
Section 6. Fiduciary Obligations Unaffected. Nothing in this
Article VII shall be construed to relieve any Related Person from any
fiduciary duty imposed by law.
Section 7. Article VII Nonexclusive. The provisions of this
Article VII are nonexclusive and are in addition to any other provisions of
law or these Restated Articles of Incorporation or the By-Laws of the
Corporation relating to Business Combinations, Related Persons, or similar
matters.
ARTICLE VIII
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Restated Articles of Incorporation
in the manner now or hereafter prescribed by statute. Notwithstanding any
other provision of these Restated Articles of Incorporation or the By-Laws
of the Corporation (and in addition to any other vote that may be required
by law, these Restated Articles of Incorporation or the By-Laws), the
affirmative vote of the holders of at least 80% of the outstanding shares
of the capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) shall be
required to amend, alter or repeal any provision of Articles VI, VII, or
VIII of these Restated Articles of Incorporation.
<PAGE> 27
BY-LAWS
OF
SHOE CARNIVAL, INC.
As amended and restated as of July 16, 1996
<PAGE> 28
Article I
Identification
Section 1. Name. The name of the Corporation is Shoe Carnival,
Inc.
Section 2. Registered Office. The registered office of the
Corporation in the State of Indiana shall be 8233 Baumgart Road,
Evansville, Indiana 47711.
Section 3. Principal Office. The principal office of the
Corporation shall be 8233 Baumgart Road, Evansville, Indiana 47711.
Section 4. Other Offices. The Corporation may also have an
office or offices, and keep the books and records of the Corporation,
except as may otherwise be required by law, at such other place or places,
either within or without the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation require.
Article II
Meetings of Shareholders
Section 1. Place of Meeting. All meetings of the shareholders
of the Corporation shall be held at the principal office of the Corporation
or at such other places, within or without the State of Indiana, as may
from time to time be fixed by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of the
shareholders of the Corporation for the election of directors and for the
transaction of such other business as may properly come before the meeting
shall be held on the second Thursday in June in each year, if not a legal
holiday under the laws of the place where the meeting is to be held, and,
if a legal holiday, then on the next succeeding day not a legal holiday
under the laws of such place, or on such other date and at such hour as may
from time to time be fixed by the Board of Directors.
Section 3. Special Meetings. Subject to the rights of the
holders of any class or series of Preferred Stock, special meetings of the
shareholders for any purpose or purposes may be called only by the Chairman
of the Board or a majority of the entire Board of Directors. Only such
<PAGE> 29
business as is specified in the notice of any special meeting of the
shareholders shall come before such meeting.
Section 4. Notice of Meetings. Written notice of each meeting
of the shareholders, whether annual or special, shall be given, either by
personal delivery or by mail, not less than 10 nor more than 60 days before
the date of the meeting to each shareholder of record entitled to notice of
such meeting. If mailed, such notice shall be deemed given when deposited
in the United States mail, postage prepaid, directed to the shareholder at
such shareholder's address as it appears on the records of the Corporation.
Each such notice shall state the place, date and hour of the meeting, and
the purpose or purposes for which the meeting is called. Notice of any
meeting of shareholders shall not be required to be given to any
shareholder who shall attend such meeting in person or by proxy without
protesting, prior to or at the commencement of the meeting, the lack of
proper notice to such shareholder, or who shall waive notice thereof as
provided in Article VIII of these By-Laws. Notice of adjournment of a
meeting of shareholders need not be given if the time and place to which it
is adjourned are announced at such meeting, unless the adjournment is for
more than 30 days or, after adjournment, a new record date is fixed for the
adjourned meeting.
Section 5. Quorum. The holders of a majority of the votes
entitled to be cast by the shareholders entitled to vote, which if any vote
is to be taken by classes shall mean the holders of a majority of the votes
entitled to be cast by the shareholders of each such class, present in
person or by proxy, shall constitute a quorum for the transaction of
business at any meeting of the shareholders.
Section 6. Adjournments. In the absence of a quorum, the
holders of a majority of the votes entitled to be cast by the shareholders,
present in person or by proxy, may adjourn the meeting from time to time.
At any such adjourned meeting at which a quorum may be present, any
business may be transacted which might have been transacted at the meeting
as originally called.
Section 7. Order of Business. At each meeting of the
shareholders, the Chairman of the Board, or, in the absence of the Chairman
of the Board, the President or such other person designated by the Board of
Directors, shall act as chairman. At each annual meeting only such
business shall be conducted as shall have been brought before the annual
meeting (i) by or at the direction of the Board of Directors or (ii) by any
<PAAGE> 30
shareholder who complies with the procedures set forth in this Section 7.
For business properly to be brought by a shareholder before an
annual meeting, the shareholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal office of the Corporation not less than 30 days nor more than 60
days prior to the annual meeting; provided, however, that in the event that
less than 40 days' notice or prior public disclosure of the date of the
annual meeting is given or made to shareholders, notice by the shareholder
to be timely must be received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. To be in proper
written form, a shareholder's notice to the Secretary shall set forth in
writing as to each matter the shareholder proposes to bring before the
annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting; (ii) the name and address, as they appear
on the Corporation's books, of the shareholder proposing such business;
(iii) the class and number of shares of stock of the Corporation which are
beneficially owned by the shareholder; and (iv) any material interest of
the shareholder in such business. Notwithstanding anything in these By-
Laws to the contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this Section 7. The
chairman of an annual meeting shall, if the facts warrant, determine and
declare to the annual meeting that business was not properly brought before
the annual meeting in accordance with the provisions of this Section 7 and,
if he should so determine, he shall so declare to the annual meeting and
any such business not properly brought before the annual meeting shall not
be transacted.
Section 8. List of Shareholders. It shall be the duty of the
Secretary or other officer of the Corporation who has charge of the stock
ledger to prepare and make, at least 5 business days before each meeting of
the shareholders, a complete list of the shareholders entitled to vote
thereat, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in such shareholder's name.
Such list shall be produced and kept available at the times and places
required by law.
Section 9. Voting. Each shareholder of record of any class or
series of Preferred Stock shall be entitled at each meeting of shareholders
to such number of votes for each share of such stock as may be fixed in the
<PAGE> 31
Restated Articles of Incorporation or an amendment thereto adopted by the
Board of Directors providing for the issuance of such stock, and each
shareholder of record of Common Stock shall be entitled at each meeting of
shareholders to one (1) vote for each share of stock registered in such
shareholder's name on the books of the Corporation:
(1) on the date fixed pursuant to Section 6 of Article VI of
these By-Laws as the record date for the determination of shareholders
entitled to notice of and to vote at such meeting; or
(2) if no such record date shall have been so fixed, then at
the close of business on the day next preceding the day on which
notice of such meeting is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is
held, or if no record date for determining shareholders entitled to
express consent to corporate action in writing without a meeting shall
have been fixed, the day on which the first written consent is
expressed.
Each shareholder entitled to vote at any meeting of shareholders
may authorize not in excess of three persons to act for such shareholder by
a proxy signed by such shareholder or such shareholder's attorney-in-fact.
Any such proxy shall be delivered to the secretary of such meeting at or
prior to the time designated for holding such meeting, but in any event not
later than the time designated in the order of business for so delivering
such proxies. No such proxy shall be voted or acted upon after eleven (11)
months from its date, unless the proxy provides for a shorter or longer
period.
At a meeting of the shareholders, except as provided in Article
III, Section 2 with respect to the election of directors or as required by
law, all corporate actions to be taken by vote of the shareholders shall be
authorized if the number of votes cast in favor of the action exceeds the
number of votes cast opposing the action, and where a separate vote by
class is required, the number of votes cast in favor of the action by the
shareholders of such class exceeds the number of votes cast by the
shareholders of such class opposing the action.
Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
directors, need not be by written ballot. In the case of a vote by written
ballot, each ballot shall be signed by the shareholder voting, or by such
<PAGE> 32
shareholder's proxy, and shall state the number of shares voted.
Section 10. Inspectors. Either the Board of Directors or, in
the absence of designation of inspectors by the Board, the chairman of any
meeting of shareholders may, in its or such person's discretion, appoint
two or more inspectors to act at any meeting of shareholders. Such
inspectors shall perform such duties as shall be specified by the Board or
the chairman of the meeting. Inspectors need not be shareholders. No
director or nominee for the office of director shall be appointed such
inspector.
Article III
Board of Directors
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors, which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or by the Restated Articles
of Incorporation of the Corporation directed or required to be exercised or
done by the shareholders.
Section 2. Number, Qualification and Election. Except as
otherwise fixed by or pursuant to the provisions of the Restated Articles
of Incorporation of the Corporation relating to the rights of the holders
of any class or series of Preferred Stock, the number of directors of the
Corporation shall be determined from time to time by vote of a majority of
the entire Board of Directors, provided that the number thereof may not be
less than three nor more than fifteen.
The directors, other than those who may be elected by the holders
of shares of any class or series of Preferred Stock pursuant to the terms
of the Restated Articles of Incorporation or any resolution or resolutions
providing for the issuance of such stock adopted by the Board, shall be
classified, with respect to the time for which they severally hold office,
into three classes as nearly equal in number as possible: one class whose
term expires at the 1997 annual meeting of shareholders, another class
whose term expires at the 1998 annual meeting of shareholders and another
class whose term expires at the 1999 annual meeting of shareholders, with
each class to hold office until its successors are elected and qualified.
The membership of each class shall be initially as set forth in the
Restated Articles of Incorporation. If the number of directors is
<PAGE> 33
thereafter changed by the Board of Directors, any newly created
directorships or any decrease in directorships shall be so apportioned
among the classes as to make all classes as nearly equal as possible;
provided, however, that no decrease in the number of directors shall
shorten the term of any incumbent director. At each annual meeting of the
shareholders of the Corporation, subject to the rights of the holders of
any class or series of stock having a preference over the Common Stock of
the Corporation as to dividends or upon liquidation, the successors of the
class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of shareholders held
in the third year following the year of their election.
Directors need not be shareholders of the Corporation.
In any election of directors, the persons receiving a plurality
of the votes cast, up to the number of directors to be elected in such
election, shall be deemed elected.
Section 3. Notification of Nominations. Subject to the rights
of the holders of any class or series of Preferred Stock, nominations for
the election of directors may be made by the Board of Directors or by any
shareholder entitled to vote for the election of directors, but in the case
of a nomination by a shareholder, only if such shareholder gives timely
notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a shareholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less
than 30 days nor more than 60 days prior to the meeting; provided, however,
that in the event that less than 40 days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. To be
in proper written form, such shareholder's notice shall set forth in
writing (i) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required under the Securities
Exchange Act of 1934, as amended, including, without limitation, such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected; and (ii) as to the shareholder
giving the notice (x) the name and address, as they appear on the
Corporation's books, of such shareholder and (y) the class and number of
shares of stock of the Corporation which are beneficially owned by such
<PAGE> 34
shareholder. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the Corporation the information required to be
set forth in a shareholder's notice of nomination which pertains to the
nominee. In the event that a shareholder seeks to nominate one or more
directors, the Secretary shall appoint two inspectors, who shall not be
affiliated with the Corporation, to determine whether a shareholder has
complied with this Section 3. If the inspectors shall determine that a
shareholder has not complied with this Section 3, the inspectors shall
direct the chairman of the meeting to declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws of the Corporation, and the chairman shall so declare to the
meeting and the defective nomination shall be disregarded.
Section 4. Quorum and Manner of Acting. Except as otherwise
provided by these By-Laws, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business at any meeting of
the Board, and, except as so provided, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board. In the absence of a quorum, a majority of the directors
present may adjourn the meeting to another time and place. At any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section 5. Place of Meeting. The Board of Directors may hold
its meetings at such place or places within or without the State of Indiana
as the Board may from time to time determine or as shall be specified or
fixed in the respective notices or waivers of notice thereof.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board shall from
time to time by resolution determine. If any day fixed for a regular
meeting shall be a legal holiday under the laws of the place where the
meeting is to be held, the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day.
Section 7. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board or by
a majority of the directors.
Section 8. Notice of Meetings. Notice of regular meetings of
the Board of Directors or of any adjourned meeting thereof need not be
given. Notice of each special meeting of the Board shall be mailed to each
<PAGE> 35
director, addressed to such director at such director's residence or usual
place of business, at least two days before the day on which the meeting is
to be held or shall be sent to such director at such place by telegraph or
be given personally or by telephone, not later than the day before the
meeting is to be held, but notice need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of such
notice or who shall attend such meeting without protesting, prior to or at
its commencement, the lack of notice to such director. Every such notice
shall state the time and place but need not state the purpose of the
meeting.
Section 9. Rules and Regulations. The Board of Directors may
adopt such rules and regulations not inconsistent with the provisions of
these By-Laws for the conduct of its meetings and management of the affairs
of the Corporation as the Board may deem necessary or proper. In the
absence of the Chairman of the Board, such person designated by the Board
of Directors shall preside at meetings of the Board.
Section 10. Participation in Meeting by Means of Communications
Equipment. Any one or more members of the Board of Directors or any
committee thereof may participate in any meeting of the Board or of any
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute
presence in person at such meeting.
Section 11. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all of the members of
the Board or of any such committee consent thereto in writing and the
writing or writings are filed with the minutes of proceedings of the Board
or of such committee.
Section 12. Resignations. Any director of the Corporation may
at any time resign by giving written notice to the Board of Directors, the
Chairman of the Board, the President or the Secretary of the Corporation.
Such resignation shall take effect at the time specified therein or, if the
time be not specified, upon receipt thereof; and, unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 13. Removal of Directors. Directors may be removed only
as provided in the Restated Articles of Incorporation of the Corporation.
<PAGE> 36
Section 14. Vacancies. Subject to the rights of the holders of
any class or series of Preferred Stock, any vacancies on the Board of
Directors resulting from death, resignation, removal or other cause shall
only be filled by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors, or by a sole remaining director, and newly created directorships
resulting from any increase in the number of directors shall be filled by
the Board, or if not so filled, by the shareholders at the next annual
meeting thereof or at a special meeting called for that purpose in
accordance with Section 3 of Article II of these By-Laws. Any director
elected in accordance with the preceding sentence of this Section 14 shall
hold office for the remainder of the full term of the class of directors in
which the new directorship was created or the vacancy occurred and until
such director's successor shall have been elected and qualified.
Section 15. Compensation. Each director who shall not at the
time also be an officer or employee of the Corporation or any of its
subsidiaries (hereinafter referred to as an "outside director"), in
consideration of such person serving as a director, shall be entitled to
receive from the Corporation such amount per annum and such fees for
attendance at meetings of the Board of Directors or of committees of the
Board, or both, as the Board shall from time to time determine. In
addition, each director, whether or not an outside director, shall be
entitled to receive from the Corporation reimbursement for the reasonable
expenses incurred by such person in connection with the performance of such
person's duties as a director. Nothing contained in this Section shall
preclude any director from serving the Corporation or any of its
subsidiaries in any other capacity and receiving proper compensation
therefor.
Section 16. Committees. The Board of Directors may, by
resolution adopted by a majority of the entire Board, designate one or more
of its members to constitute members or alternate members of a committee.
Such committee, to the extent provided in the resolution of the Board,
shall have and may exercise the powers and authority of the Board in the
management of the business and affairs of the Corporation, including
without limitation, if such committee is so empowered and authorized in the
resolution of the Board, the power and authority to declare a dividend and
to authorize the issuance of stock, and may authorize the seal of the
Corporation, if any, to be affixed to all papers which may require it,
except that no committee shall have such power or authority in reference
to:
(a) authorize dividends or other distributions, except a
committee (or an executive officer of the Corporation designated by
<PAGE> 37
the Board of Directors) may authorize or approve a reacquisition of
stock or other distribution, if done according to a formula or method,
or within a range, prescribed by the Board of Directors;
(b) approve or propose to shareholders action that is required
to be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of its
committees;
(d) except to the extent permitted by clause (g) below, amend
the Corporation's Restated Articles of Incorporation;
(e) adopt, amend, repeal, or waive provisions of these By-Laws;
(f) approve a plan of merger not requiring shareholder
approval; or
(g) authorize or approve the issuance or sale or a contract for
sale of stock, or determine the designation and relative rights,
preferences, and limitations of a class or series of Preferred Stock,
except the Board of Directors may authorize a committee (or an
executive officer of the Corporation designated by the Board of
Directors) to take the action described herein within limits
prescribed by the Board of Directors.
A majority of all the members of such committee may determine its action
and fix the time and place of its meetings, unless the Board shall
otherwise provide. The Board shall have power at any time to change the
membership of, to fill all vacancies in and to discharge any such
committee, either with or without cause.
Article IV
Officers
Section 1. Number; Term of Office. The officers of the
Corporation shall be a Chairman of the Board, a President, one or more
Vice-Presidents, one or more of whom may be designated as Executive or
Senior Vice-Presidents, a Treasurer, a Secretary, and such other officers
or agents with such titles and such duties as the Board of Directors may
from time to time determine, each to have such authority, functions or
<PAGE> 38
duties as in these By-Laws provided or as the Board may from time to time
determine, and each to hold office for such term as may be prescribed by
the Board and until such person's successor shall have been chosen and
shall qualify, or until such person's death or resignation, or until such
person's removal in the manner hereinafter provided. The Chairman of the
Board shall be elected from among the directors. One person may hold the
offices and perform the duties of any two or more of said officers;
provided, however, that no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by law,
the Restated Articles of Incorporation of the Corporation or these By-Laws
to be executed, acknowledged or verified by two or more officers. The
Board may from time to time authorize any officer to appoint and remove any
such other officers and agents and to prescribe their powers and duties.
The Board may require any officer or agent to give security for the
faithful performance of such person's duties.
Section 2. Removal. Any officer may be removed, either with or
without cause, by the Board of Directors at any meeting thereof called for
the purpose, or, except in the case of any officer elected by the Board, by
any committee or superior officer upon whom such power may be conferred by
the Board.
Section 3. Resignation. Any officer may resign at any time by
giving notice to the Board of Directors, the Chairman of the Board, the
President or the Secretary of the Corporation. Any such resignation shall
take effect at the date of receipt of such notice or at any later date
specified therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired
portion of the term in the manner prescribed in these By-Laws for election
to such office.
Section 5. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and, if present,
preside at meetings of the shareholders. He shall have such other duties
and responsibilities as may be specified by the Board of Directors.
Section 6. President. The President shall be the chief
executive officer of the Corporation and as such shall have general
supervision and direction of the business and affairs of the Corporation
subject to the control of the Board of Directors. The President shall
perform such other duties as the Board may from time to time determine and
<PAGE> 39
shall, in the absence of the Chairman of the Board, preside at meetings of
the shareholders.
Section 7. Vice-Presidents. Each Vice-President shall have such
powers and duties as shall be prescribed by the President or the Board of
Directors.
Section 8. Treasurer. The Treasurer shall perform all duties
incident to the office of Treasurer and such other duties as from time to
time may be assigned to the Treasurer by the President or the Board of
Directors.
Section 9. Secretary. The Secretary shall see that all notices
required to be given by the Corporation are duly given and served; the
Secretary shall have charge of the stock ledger and also of the other
books, records and papers of the Corporation and of its corporate seal, if
any, and shall see that the reports, statements and other documents
required by law are properly kept and filed; and shall in general perform
all the duties incident to the office of Secretary and such other duties as
from time to time may be assigned to such person by the President or the
Board of Directors.
Section 10. Assistant Treasurers or Secretaries. The Assistant
Treasurers and the Assistant Secretaries, if any, shall perform such duties
as shall be assigned to them by the Treasurer or Secretary, or by the
President or the Board of Directors.
Article V
Indemnification of Directors, Officers, Employees and Agents
Section 1. Indemnification. To the fullest extent permitted by
the laws of the State of Indiana, the Corporation shall indemnify any
person who is or was a party, or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, including appeals.
<PAGE> 40
Section 2. Advance of Expenses. To the fullest extent permitted
by the laws of the State of Indiana, the Corporation shall pay expenses
incurred in defending a civil or criminal action, suit or proceeding
described in Section 1 of this Article V in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Corporation.
Section 3. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article V.
Section 4. Applicability. The provisions of this Article V
shall be applicable to all actions, claims, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or omissions
to act occurring before or after its adoption. The provisions of this
Article V shall be deemed to be a contract between the Corporation and each
director, officer, employee or agent who serves in such capacity at any
time while this Article V and the relevant provisions of the laws of the
State of Indiana and other applicable law, if any, are in effect, and any
repeal or modification thereof shall not affect any rights or obligations
then existing with respect to any state of facts or any action, suit or
proceeding then or theretofore existing, or any action, suit or proceeding
thereafter brought or threatened based in whole or in part on any such
state of facts. If any provision of this Article V shall be found to be
invalid or limited in application by reason of any law or regulation, it
shall not affect the validity of the remaining provisions hereof. The
rights of indemnification provided in this Article V shall neither be
exclusive of, nor be deemed in limitation of, any rights to which any such
officer, director, employee or agent may otherwise be entitled or permitted
by contract, the Restated Articles of Incorporation, vote of shareholders
or directors or otherwise, or as a matter of law, both as to actions in his
official capacity and actions in any other capacity while holding such
office, it being the policy of the Corporation that indemnification of the
specified individuals shall be made to the fullest extent permitted by law.
<PAGE> 41
Section 5. Certain Definitions. For purposes of this Article V,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries.
Article VI
Capital Stock
Section 1. Certificates for Shares. Certificates representing
shares of stock of each class of the Corporation, whenever authorized by
the Board of Directors, shall be in such form as shall be approved by the
Board. The certificates representing shares of stock of each class, or
series within a class, of such stock shall be consecutively numbered as
issued. Each certificate shall state: the name of the Corporation; that it
is organized under the laws of the State of Indiana; the name of the
registered holder; the number of shares and class and the designation of
the series, if any, of the stock represented thereby; and a summary of the
designations, relative rights, preferences and limitations applicable to
such class and, if applicable, the variations in rights, preferences and
limitations determined for each series and the authority of the Board to
determine such variations for future series; provided, however, that such
summary may be omitted if the certificate states conspicuously on its front
or back that the Corporation will furnish the shareholder such information
upon written request and without charge.
The certificates shall be signed by, or in the name of, the
Corporation by the Chairman of the Board or the President or a Vice-
President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer of the Corporation. Any or all such signatures
may be facsimiles if countersigned by a transfer agent or registrar.
Although any officer, transfer agent or registrar whose manual or facsimile
signature is affixed to such a certificate ceases to be such officer,
transfer agent or registrar before such certificate has been issued, it may
nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its
issue.
<PAGE> 42
The stock ledger and blank share certificates shall be kept by
the Secretary or by a transfer agent or by a registrar or by any other
officer or agent designated by the Board.
Section 2. Transfer of Shares. Transfers of shares of stock of
each class of the Corporation shall be made only on the books of the
Corporation by the holder thereof, or by such holder's attorney thereunto
authorized by a power of attorney duly executed and filed with the
Secretary of the Corporation or a transfer agent for such stock, if any,
and on surrender of the certificate or certificates for such shares
properly endorsed or accompanied by a duly executed stock transfer power
and the payment of all taxes thereon. The person in whose name shares
stand on the books of the Corporation shall be deemed the owner thereof for
all purposes as regards the Corporation; provided, however, that whenever
any transfer of shares shall be made for collateral security and not
absolutely, and written notice thereof shall be given to the Secretary or
to such transfer agent, such fact shall be stated in the entry of the
transfer. No transfer of shares shall be valid as against the Corporation,
its shareholders and creditors for any purpose, except to render the
transferee liable for the debts of the Corporation to the extent provided
by law, until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section 3. Addresses of Shareholders. Each shareholder shall
designate to the Secretary or transfer agent of the Corporation an address
at which notices of meetings and all other corporate notices may be served
or mailed to such person, and, if any shareholder shall fail to designate
such address, corporate notices may be served upon such person by mail
directed to such person at such person's post office address, if any, as
the same appears on the share record books of the Corporation or at such
person's last known post office address.
Section 4. Lost, Destroyed and Mutilated Certificates. The
holder of any share of stock of the Corporation shall immediately notify
the Corporation of any loss, theft, destruction or mutilation of the
certificate therefor; the Corporation may issue to such holder a new
certificate or certificates for shares, upon the surrender of the mutilated
certificate or, in the case of loss, theft or destruction of the
certificate, upon satisfactory proof of such loss, theft or destruction;
the Board of Directors, or a committee designated thereby, or the transfer
agents and registrars for the stock, may, in their discretion, require the
owner of the lost, stolen or destroyed certificate, or such person's legal
representative, to give the Corporation a bond in such sum and with such
<PAGE> 43
surety or sureties as they may direct to indemnify the Corporation and said
transfer agents and registrars against any claim that may be made on
account of the alleged loss, theft or destruction of any such certificate
or the issuance of such new certificate.
Section 5. Regulations. The Board of Directors may make such
additional rules and regulations as it may deem expedient concerning the
issue and transfer of certificates representing shares of stock of each
class of the Corporation and may make such rules and take such action as it
may deem expedient concerning the issue of certificates in lieu of
certificates claimed to have been lost, destroyed, stolen or mutilated.
Section 6. Fixing Date for Determination of Shareholders of
Record. In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment or any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 70 days before the
date of such meeting. A determination of shareholders entitled to notice
of or to vote at a meeting of the shareholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new record
date, which it must do if the adjourned meeting is not within 120 days of
the date fixed for the original meeting.
Article VII
Fiscal Year
The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors. In the absence of such a resolution,
the fiscal year of the Corporation shall end on the Saturday nearest
January 31 of each year.
Article VIII
Waiver of Notice
Whenever any notice whatsoever is required to be given by these
By-Laws, by the Restated Articles of Incorporation of the Corporation or by
law, the person entitled thereto may, either before or after the meeting or
other matter in respect of which such notice is to be given, waive such
notice in writing, which writing shall be filed with or entered upon the
<PAGE> 44
records of the meeting or the records kept with respect to such other
matter, as the case may be, and in such event such notice need not be given
to such person and such waiver shall be deemed equivalent to such notice.
Article IX
Amendments
Any By-Law (other than this Article IX) may be adopted, repealed,
altered or amended by a majority of the entire Board of Directors at any
meeting thereof, provided that such proposed action in respect thereof
shall be stated in the notice of such meeting.
Article X
Miscellaneous
Section 1. Execution of Documents. The Board of Directors or
any committee thereof shall designate the officers, employees and agents of
the Corporation who shall have power to execute and deliver deeds,
contracts, mortgages, bonds, debentures, notes, checks, drafts and other
orders for the payment of money and other documents for and in the name of
the Corporation and may authorize such officers, employees and agents to
delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation. Such
delegation may be by resolution or otherwise and the authority granted
shall be general or confined to specific matters, all as the Board of
Directors or any such committee may determine. In the absence of such
designation referred to in the first sentence of this Section, the officers
of the Corporation shall have such power so referred to, to the extent
incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation or otherwise as the Board of Directors or any committee thereof
or any officer of the Corporation to whom power in that respect shall have
been delegated by the Board of Directors or any such committee shall
select.
Section 3. Checks. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation, and all notes or
other evidences of indebtedness of the Corporation, shall be signed on
<PAGE> 45
behalf of the Corporation in such manner as shall from time to time be
determined by resolution of the Board of Directors or of any committee
thereof.
Section 4. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board of Directors or any committee thereof shall
designate the officers of the Corporation who shall have authority from
time to time to appoint an agent or agents of the Corporation to exercise
in the name and on behalf of the Corporation the powers and rights which
the Corporation may have as the holder of stock or other securities in any
other corporation, and to vote or consent in respect of such stock or
securities; such designated officers may instruct the person or persons so
appointed as to the manner of exercising such powers and rights; and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation or otherwise, such written proxies, powers of
attorney or other instruments as they may deem necessary or proper in order
that the Corporation may exercise its said powers and rights.
Section 5. By-Laws Subject to Law and Restated Articles of
Incorporation of the Corporation. Each provision of these By-Laws is
subject to any contrary provision of the Restated Articles of Incorporation
of the Corporation or of any applicable law as from time to time in effect,
and to the extent any such provision is inconsistent therewith, such
provision shall be superseded thereby for as long as it is inconsistent,
but for all other purposes of these By-Laws shall continue in full force
and effect.
Section 6. Definition of Restated Articles of Incorporation.
The term "Restated Articles of Incorporation" as used in these By-Laws
means the Restated Articles of Incorporation of the Corporation as from
time to time in effect.
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